Ancient Tales of a Kingdom not Unlike One You Know

Month: February 2014

For about 5 months between 2013-14, former fundraiser for the presidential campaign of President Jonathan, and his erstwhile minister of aviation, Ms Stella Oduah, was under fire. The history of her various battles was captured, at various points, in the compendium of limericks below.

Her first trial came after a tragic spate of air crashes, when she held a press conference and declared, “We do not pray for accidents but it is inevitable… We do everything to ensure that we do not have accidents, but it is an act of God.” She probably meant something closer to “force majeure” and not that these things would happen regardless of how vigilant we mortals were, but she was roundly ridiculed for the statement…

The question that’s now on the table-

Is it true or is it a fable

That aircraft must drop

Accidents won’t stop

It’s really all inevitable?

Shortly thereafter, it emerged that she had given her approval for one of the departments under her supervision to purchase 2 armoured BMWs at a cost of N255million (US$1.6million). Investigations were conducted, leading to a hearing at the Federal Legislature. There, the contractor who imported the cars, a long established auto-industry mogul, admitted bringing the vehicles in via import waivers meant for the Lagos State Sports Festival from the previous year, to avoid tax. As for the minister, she said she realized that the money involved exceeded the statutory ministerial authority (of N100 million) and she qualified her approval of the internal memo with the words “do the needful”. As such, it purportedly then became the government department’s job to see that the cars were procured lawfully. Cue a nation-full of raised eyebrows. Her Director from the department then testified that the cars were not meant for the minister, oh no! They were for dignitaries from IATA and other ministries of aviation. Cue a nation-full of “yeah right!”…

The heat didn’t really die down with the hearing at the House. Not too long afterwards, an “assassination attempt” on Ms Oduah was reported. Luckily for her, she was not in the ambushed car. However, the incident was not reported to the Police until 48 hours afterwards and as for the police investigation, it’s probably best not to say anymore…

She purchased those cars, not in jest

And also a bulletproof vest

The House’s report

Is just writing sport

Now sympathy trumps an arrest

——

Turned out the Beamer’s weren’t costly

And we were outraged unjustly

To questions about

Corruptional doubt

Our Prez’dent has replied “robustly”

But Stella kept working hard, especially at the international airports, keeping on with the expansions and remodeling. Then, she announced something called the Aerotropolis, that would result in the creation of a world record 10 million jobs! Cynicism trailed almost all she was doing by this time and the jobs projection was met with the greatest skepticism possible…

She was then accused of barring State Security Service personnel from the international airports. This was probably a silly rumour and her team promptly denied it.

Ms Stella’s again in the news

Bizarre, but they say she’s refused

To permit access

By the SSS

To airports, and they’ve blown a fuse

Finally, after months of robust silence from the presidency on all matters that concerned her, she was chopped in a cabinet reshuffle. We don’t expect her separation from the president to be permanent however, given their history.

President Robert Mugabe of Zimbabwe turned 90 on the 21st of February. In the run-up to the big day, the ice-creaming loving liberator informed the world that he had no plans to retire. He will live forever, this man.

Today, the 20th of February 2014, the President’s Spokesperson, Dr Reuben Abati, announced that President Jonathan had suspended Sanusi Lamido Sanusi, Governor of the Central Bank of Nigeria, and had appointed an Acting Governor in his place. Sanusi’s first tenure of 5 years ought to have ended in a few months’ time and he was widely reported not to be interested in a second term, to which he would ordinarily have been entitled.

The announcement of his suspension follows recent reports of turbulence between the erstwhile CBN over several issues, including, allegedly, Sanusi’s insistence on the existence of a huge financial remittance deficit by the Nigerian National Petroleum Corporation.

Does the President have the power to suspend or otherwise remove the Governor from office? Well, sorta, kinda. Section 11 of the CBN Act of 2007 states as follows –

11(1) A person shall not remain a Governor, Deputy Governor or Director of the [Central] Bank [of Nigeria] if he is –

(a) a member of any Federal or State legislative house; or

(b) a Director, officer or employee of any bank licensed under the Banks and Other Financial Institutions Act.

11(2) The Governor, Deputy Governor or Director shall cease to hold office in the Bank if he –

(a) becomes of unsound mind, or owing to ill health, is incapable of carrying out his duties;

(b) is convicted of any criminal offence by a court of competent jurisdiction except for traffic offences or contempt proceedings arising in connection with the execution or intended execution of any power or duty conferred under this Act or the Banks and Other Financial Institutions Act;

(c) is guilty of a serious misconduct in relation to his duties under this Act;

(d) is disqualified or suspended from practising his profession in Nigeria by order of a competent authority made in respect of him personally;

(e) becomes bankrupt;

(f) is removed by the President:

Provided that the removal of the Governor shall be supported by two-thirds majority of the Senate praying that he be so removed.

(3) The Governor or any Deputy Governor may resign his office by giving at least three months’ notice in writing to the President of his intention to do so and any Director may similarly resign by givingat least one month’s notice in writing to the President of his intention to do so.

(4) If the Governor, any Deputy Governor of Director of the Bank dies, resigns or otherwise vacates his office before the expiry of the tem for which he has been appointed, there shall be appointed a fit and proper person to take his place on the Board for the unexpired period of the term of appointment in the first instance if the vacancy is that of –

(a) the Governor or a Deputy Governor, the appointment shall be made in the manner prescribed by section 8(1) and (2) of this Act; and

(b) any Director, the appointment shall be made in the manner prescribed by section 10(1) and (2) of this Act.

If we look at 11(2)(f), which was highlighted, I believe we can conclude that the President has taken a legitimate first step in removing Sanusi from the position of Governor. However, the removal is what we lawyers like to describe as “inchoate” until it is ratified by a two-thirds majority of the Senate. Can Senate President, David Mark, deliver a two-thirds majority to the President, to rubber-stamp Sanusi’s removal? One is confused with all the defections and cross-defections in the National Assembly of late, but we will just have to wait and see.

It may be surprising, but I think that Coming to America may be having its greatest period of influence ever on African entertainment, 26 years after its release in 1988. On Nollywood, in particular. The movie, one of my personal favourite comedies, follows the story of Akeem, crown prince of the fictional African Kingdom of Zamunda, who comes to America to find a bride. It was Eddie Murphy at the height of his powers.

Anyway, a couple of weeks ago, I had to take an ABC Coach to go to Cotonou to see a man about a thing. A fairly short distance but thumbs up to the Federal Road Safety Commission and the Customs and Immigration Services with their 10 checkpoints each between LASU and the border, and then at the border itself, for tacking on an extra few hours. ABC filled the intervening journey time with their “in-flight” Nollywood entertainment.

Apart from seeing previews with Funke Akindele basically reprising her Jenifa character in a variety of non-Jenifa-franchise movies clearly aimed at boosting her crossover appeal (our very own Steven Seagal, if you like), there were loads of “Igwe” films. Kings and crown princes from various miniature kingdoms, purportedly in southeastern Nigeria, living in varying degrees of mostly anachronistic opulence. It wasn’t out of place, for instance, to see a prince or princess, who lived in a palace with marble floors and modern furniture, go for walks in the forest barefooted. Or for neighbouring kingdoms, whose Igwes both drive 2003+ Mercedes Benzes to gather up their “soldiers”, dress them in animal-skin loin-cloth, arm them with spears and shields and then “go to war”.

More than anachronisms however, were the unmistakable influences from King Jaffe Joffa of Zamunda, with servants in uniform, kings and princes with lionskin/lionhead sashes, right down to even the caps that Akeem and Semi wore. Then, there was the movie where three princesses tried to outdo each other to be chosen by the crown prince of some other kingdom, at the banquet put on by their father (more Disney Princess than Akeem, I’ll admit) and another where the monarch had people throwing flower petals on the ground for him to walk on.

The Royal Petal Throwers

I’m probably not in Nollywood’s target demographic but I couldn’t help thinking about the differences between Zamunda and the “kingdoms” in the Igwe movies. Zamunda was a country, so Jaffe’s wealth was more understandable and more likely than the usually unexplained wealth of the movie Igwe. Also, from my understanding of traditional monarchies in Nigeria, succession to the throne is not hereditary, at least not in the sense of passing from Father to Son to Grandson. It more often than not is determined by a council of kingmakers and, as such, crown princes are an unlikely notion. I may be wrong about this however.

I think, more than the inconsistencies, which will surely be eliminated over time, it is truly remarkable, in 2014, to still see shades of Akeem and his father in the carriage and costume of the Nollywood kings and princes. Tribute to an enduring piece of movie magic.

And it came to pass, on the tenth day of the second month of the two thousandth and fourteenth year of our Lord, after a season of chill, a trouble came upon the land of the Twillistines and there was a lack of chill.

The prophets of blog had been summoned by King JeKFa of the Western Kingdom of Ekitilopia and lo, he sought their counsel for three days and three nights. Yea, unto them did he bring a feast and unto them he shewed the fat of the land.

He spake unto them his vision for prosperity that he might receive their prophetic anointing for the crown not to depart from his head. And the prophets, upon return to whence they came, did receive fifty bags of silver from King JeFka.

And they prophesied unto the Twillistines. But yea, after 2 days and 2 nights were passed from the departure of the Prophets of Blog from the presence of King JeFka, the spirit of the Tword came upon Bubsalom, prophet of PiDoPilia and through him it was revealed that utterance from the Prophets of Blog followed the receipt of silver. And there erupted a severe lack of chill. The Prophets of Blog, incensed, did say that many of their number received the 50 bags of silver in restitution, rather than gratification or perversion. Then that evil spirit, demon from the depths, swept over the Twillistines. And his name is known unto the sons of men as Cynicism. Thence followed the chronicles of chill…

In a recent piece for Premium Times, Michael Abimboye highlighted a new trend in the entertainment industry which, if true, presents an interesting legal situation. According to the piece, in the wake of the mass recruitment of musicians as brand ambassadors by telcos, many have been effectively precluded from working with ambassadors of rival brands on projects that have no connection with the brands. This, to my mind, brings up the issue of the restraint of trade.

Restraint of trade is a common law doctrine that raises the question of the enforceability of clauses in some contracts. Generally, there is a freedom to contract i.e. parties are free to agree to whatever they deem fit. However, apart from outright crimes, the law as a matter of public policy frowns at some things that are not necessarily illegal. One of these things is the restraint of trade.

A contract in restraint of trade is one that partly or wholly restricts a person from carrying out a business or a trade. At common law, such agreements are, as a general rule, not enforceable. This means that an aggrieved party cannot ask the court to uphold the agreement and prevent the other party from carrying on his trade in the manner written down in their agreement. To relate this to the current issue of brand endorsements, it would mean that “Yellow Telco” would ordinarily not be able to ask the court to prevent “Artiste W”, its ambassador, from appearing in the music video of “Artiste O”, who happens to be an ambassador for “Green Telco”.

In law however, exceptions usually outnumber the general rule and it is no different with contracts in restraint of trade. Furthermore, there are now at least three separate categories in which the issue may arise, with different applicable principles – (1) employment contracts, (2) general commercial agreements and (3) under competition law. In categories (1) and (2), especially where the relationship between the Parties involves the exchange of trade secrets or such other confidential information, the courts have been known to enforce the restraint.

Under English law, restraints have to be reasonable to be enforceable. According to this paper, US courts have set the following 3-pronged test to determine the reasonability of clauses restraining trade:

is the restraint necessary to protect the employer’s legitimate interest?

would enforcement be unreasonably burdensome to the employee or harmful to the public interest?

are time and geographical restraints reasonable?

If this test were to be applied to the current allegations of “rival” ambassadors being unable to shoot videos together, the questions would be – is this restraint necessary to protect the telcos’ interests? Does the telco brand suffer dilution because musicians who ordinarily collaborate in the course of their trade and have, in fact, recorded music together, now wish to shoot a video to promote the music? Is it unreasonably burdensome for this restriction to be in place? Does these restrictions harm the public interest? Your opinions are welcome.

However, it is not clear that the restrictions put in place by the brand endorsement contracts are as extensive as are being reported. The Premium Times articles quotes MTN’s General Manager, Corporate Affairs, on this issue as follows:

“Companies sign what is known as exclusivity clauses with their brand ambassadors. Typically this would impose a restriction on the brand ambassador not to work for a competing brand within a stipulated period. This period of exclusivity is typically the duration of the agreement or as may be agreed. The exclusivity provisions does not typically extend to stopping ambassadors from interacting with each other provided what they propose to do does not amount to a breach of their obligation under the brand contract…” (emphasis supplied).

It is reasonable and it should in fact be expected, that an artist cannot endorse a rival brand during the term of their endorsement contracts. So, for example, Artist B, ambassador of “Light Green Telco” cannot appear in an advert or at an event promoting “Red Telco”. What would seem a little overboard is extending the scope of “working for a competing brand” to collaborating with a fellow artist on a project.

It is unlikely that any artist will test the judicial waters on this issue, if those endorsement contracts are as juicy as the papers report. However, I do not think a Telco that withheld payments because of a video collaboration between rival ambassadors would have a leg to stand on.

The Lagos State House of Assembly has forwarded a bill for the Governor’s assent, to regulate smoking in public places. Coincidentally, the Governor is said to be a nicotine man himself but, of course, this is not expected to have any bearing on the bill becoming law. If you’re a smoker and live in Lagos, here are some of the things you need to be aware of.

What is Smoking?

The Law defines smoking as –

the carrying or holding of any lighted pipe, cigar, cigarette of any kind (think electronic), or any other lighted smoking equipment (think hookah);

the lighting, inhaling or exhaling of smoke from a pipe, cigar or cigarette of any kind; or

being in possession of any other lit substance in a form in which it could be smoked.

Smoking is prohibited in all public places as from the commencement of the law, and such places shall be known as No Smoking Areas

What is a Public Place?

Deep breath…

“Public Place” means –

Libraries, Museums, Galleries, Public Toilets, Hospitals, Creches, Nurseries, Day Care Centres, Kindergartens, Nursery/Primary/Secondary Schools, Public Telephone Kiosk or Call Centres, Public Transportation Vehicles, Private Vehicles which have more than one person inside, School buses, restaurants, Cinemas, Theatres, Concert Halls, Conference Centres, Exhibition Halls, Shopping Centres, Retails Shops, Factories and other non-domestic premises in which one or more persons work, Work premises, Lifts, Common Parts of Plats and Communal accommodation, any structure that is enclosed or substantially enclosed and is open to the public.

Exhale….

That’s right. Your car becomes a public place once you’re carrying a passenger.

“Public Places” also includes tertiary institutions, bars and nightclubs and hotels.

You are however free to smoke on streets, roads, highways, etc.

What is the duty of the Owner/Occupier of a Public Place?

Ensure that “No Smoking” signs are displayed conspicuously at each entrance and in prominent locations throughout the premises;

Ensure that all No Smoking Areas are fixed with smoke detectors;

Ensure that smoking outside the premises does not occur within 10 metres of the entrance of the premises;

Cause a person smoking in a No Smoking Area to stop smoking

However, a section not exceeding 10% of the premises in tertiary institutions, bars, nightclubs and hotels may be designated as a “Smoking Area”.

What’s the Punishment?

Smoking Contrary to Provisions of the Law: N10,000 – N15,000 fine, or 1 – 3 months imprisonment, or both, or other non-custodial punishment the Judge may deem fit.

Owner/Occupier Default in Putting Signs Up/Installing Smoke Detectors/Stop People Smoking From Smoking:N100,000 fine, or 6 months imprisonment or both, or other non-custodial punishment the Judge may deem fit.

If Owner/Occupier is a Corporate: Directors, Managers, Partners, Secretary or other person in Management personally liable to N250,000 each.

Repeat offenders liable to N100,000 fine, or 6 months imprisonment, or both, or such other non-custodial punishment the Judge may deem fit.

What Else?

Smoking in the presence of a child under the age of 18 in such a way that exposes the child to any form of smoke or in any other way injurious to the child, makes the offender liable on conviction to a N15,000 fine or 1 month in prison or other non-custodial punishment the Judge may deem fit. Repeat offender liable to N100,000 fine or 1 year in prison, or both.

Who are the Enforcers?

LASEPA – the Lagos State Environmental Protection Agency. Hopefully, this means the police can’t go round sneaking up on people to extort them, but we’ll see.

UPDATE: Governor Fashola signed the bill into law on Monday, 17th February 2014.

The Tribune reports a bizarre story, where students of a particular secondary school in Osun State, reacting to the governor’s pot-pourri revamp, all came to school wearing religious garb. Christians in choir robes, Muslims in veils and African religionists in, well, “fetish” regalia.

Now, how does Atiku’s defection/resignation/porting affect previous political calculations? It is said to be an open secret that the current Speaker of the House is poised to join the APC and become its presidential nominee. The chatter on this has been a little subdued over the past week. More waiting and seeing to be done.

Why aren’t our labels and their artists getting along? Virtually all major labels have had a public spat with an artist, leading many times to the artist attempting to leave without being released from his contract. Expectedly, these matters have got tied up in court, with the artist prevented from working until after the suit has ended. What’s making artists so upset?

In the parallel universe where things work and there is a just reward for artistic creativity, getting a record deal is usually cause for celebration. The artist knows he/she will be paid a lump sum advance by the label, usually in instalments, which the label will try to recoup over the life of the contract, through record sales, touring, etc. In our dimension of the universe, a record deal seldom means more than the artist finding someone willing to pay for styling, studio time and video shoots in exchange for 60-70% of the artist’s net takings. Advances are rare for artists who aren’t yet established; who haven’t, as we say, “blown”, so many new/up-and-coming acts depend entirely on the label for their day-today maintenance.

This arrangement is usually fine until the artist’s first hit. The artist gets a glimpse of his/her potential earning power and, like Adam and Eve after partaking of the forbidden fruit, their eyes open. A restlessness develops that, if not managed properly, will lead to the sort of confrontations and frustrations that the Nigerian industry has seen of late.

This is not to say that the labels are without blame, however. Most of the contracts in circulation, in addition to there being no advance, have no minimum commitment (financial or otherwise) for the labels. This effectively means there is no legal means of exit for the artist in the event that the label does nothing to promote the artist or unduly delays the release of recorded material. An artist will be locked in until his/her minimum album requirement, a factor largely under the label’s control, has been discharged. This lack of minimum label commitments is understandable, given that it is the labels that draft the contracts (and will therefore insert the most favourable terms possible) and many artistes are too desperate to even think about getting a professional review before signing the contracts.

Some contracts have a term of X years, with the option to renew for Y additional 1-year periods. For example, a 4-year contract, after which the label is entitled to exercise the option to renew the contract for 2 additional terms of one year. This is potentially a 6-year deal. How does a label keep a Nigerian artist happy for 6 years? Chances are that you’re renewing because the artiste has “blown” by year 3 or 4. The artist’s expectations are likely to have changed with his stature.

But the labels aren’t in it for charity either. At the end of the day, they invest in the artist to reap a profit, like any other businessman. With the dependency on reformed(?) pirates for physical “sales”, digital suffering from the abundance of free music and quality videos costing what they do today, a long contract is probably the best way to hedge against un-recouped investment. And if the vast income spent in years 1 and 2 of a 4-year contract is rewarded with dismal revenues, what’s the incentive to keep spending for years 3 and 4? And why let the artist go after year 4 if your net profit is still a negative sum?

Can a middle ground be found?

The increasing frequency of falling-outs between artists and their labels suggests that a middle ground has to be found. It may be due to my inherent professional bias, but I think the solution lies in the contracts, drafting them and understanding them. Professionals who draft contracts need to present their principals with pre-emptive solutions to cover the commercial realities they are likely to face, given the industry’s landscape over the past few years. As with any investment, parties need to set parameters for recognising when the investment/partnership/relationship has failed and prescribe how to walk away. In addition to acknowledging that the thrust of a recording/360 contract is not a lifetime of servitude, labels may wish to consider inserting a sliding buyout scale (e.g. un-recouped advances to date + expenses to date + N5m(year 1) or N10m(year 2) or N15m (year 3)) for an artist who wants to walk away even if the label has met its obligations.

Contracts set out each Party’s expectations of the other, but signing one presumes that each party knows what is reasonable to expect of the other (so it can negotiate) and that each party understands what has been written down (so that it can review). Clearly, the unexposed artist is at the receiving end of this spectrum. Artists who can’t afford lawyers and who can’t get the label to pay for independent advice need to know the right questions to ask. Here are a few suggestions –

If the contract is for 5 albums, how frequently do you (the label) have to put one out?

If you don’t release an album within agreed time-frames, what is my remedy? How long can you withhold my music or deny me recording support before I can give you notice and walk away?

How much of the money you spend on me is a loan (and therefore recoupable) and how much is an expense (your investment)?

If it’s all recoupable (i.e. a loan, meaning I, the artist, effectively paid for it) how long after recoupment does ownership of the masters revert to me?

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